December 15, 2010

Targeted Killings and Judicial Review, continued

My colleagues Victor Hansen and George Dargo last week debated the dismissal of a federal lawsuit brought by Nasser Al-Aulaqi in respect to the targeting of his son—an American citizen—by the President of the United States for supporting Al Qaeda in the Arabian Peninsula. Hansen and Dargo debated the merits of a secret court to review targeting determinations. Professor Hansen argued that the law of armed conflict and self-defense place limits on the President’s discretion to target individuals for assassination, while Professor Dargo maintained that, absent Congressional authorization, the President lacks the authority under Article II of the Constitution to target American citizens.

This is an important issue and an important debate; the weight of the United States government behind targeted assassination is not a policy to be taken lightly.

Traditionally, the President has been regarded as having the discretion to make strategic and tactical battlefield determinations, a consequence of his commander-in-chief power under Article II—a discretionary power triggered by a Congressional authorization to use force, or an exigent circumstance that warrants military action, such as an attack on the United States. Congress authorizes the conflict, but the President controls the military; accordingly, Congress could not direct the President to, for example, position troops in a particular location, or deploy forces in a particular way in the midst of an authorized armed conflict.

Closer to home, Congress does not need to declare a war on crime to authorize state or federal agents to take down a gunman who has opened fire in a crowded public square—those state and federal agents have the authority to respond to the exigency posed by that gunman. This is not to say, of course, that state and federal agents legally could plan to assassinate that gunman in advance, or that Congress could authorize them to do so, for it is far from clear that a “war on crime” is an armed conflict in the same way that the war against terror is an armed conflict.

Further, there is some question here whether Al-Aulaqi poses the same kind of threat as our hypothetical gunman. But, as Professor Hansen has argued, the judiciary does not have the competence to second-guess that targeting decision—that is, to make the determination, based upon an evaluation of confidential intelligence information, that Al-Aulaqi is doing more than simply inciting opposition to the United States.

At the end of the day, the most important question raised by the Al-Aulaqi case is whether targeted assassination, as a state policy, is morally justifiable. But I am not sure that is a question that can be answered by a court interpreting the due process clause. At the same time, we should all hope it is a question to which the President and his advisors devote no small amount of consideration.